Third Department, July, 1920.

[Vol. 192. a formal plea the nature of the claim made in order that surprise upon the trial may be avoided and that the issues may be more intelligently met." (Dwyer v. Slattery, 118 App. Div. 345, 346; Havholm v. Whale Creek Iron Works, 159 id. 578, 582.) Here there is an allegation that an obstruction improperly placed in the Hudson river at a designated point has resulted in the destruction of the plaintiff's steamboat. How could it aid the appellant to be told in a bill of particulars the time when the steamboat was built; of what material it was built; what was its length over all and its width over all; what was its capacity or tonnage, both gross and net, and many like questions? Where is the evidence of the good faith of the defendant, appellant? These are all matters which the plaintiff must show upon the trial of the action; there is no reason to anticipate any surprise upon the trial, and the issues presented by the pleadings appear to be clearly set forth. The further allegations of the affidavit, covering substantially the old-time and discarded affidavit of merits, has no value, and we are clearly of the opinion that the court below has properly disposed of this motion and that its order should be affirmed.

The order appealed from should be affirmed, with costs. Order unanimously affirmed, with ten dollars costs and disbursements.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of IRVING SKOUIT CHI, Respondent, for Compensation under the Workmen's Compensation Law, v. CHIC CLOAK AND SUIT COMPANY, INC., Employer, and GENERAL ACCIDENT, FIRE AND LIFE ASSURANCE CORPORATION, LTD., Insurance Carrier, Appellants.

Third Department, July 8, 1920.

Workmen's Compensation Law

subdivision 6 of section 54 construed when officer of corporation injured while performing labor not entitled to award.

For employers to receive the benefit of the Workmen's Compensation Law it is required by subdivision 6 of section 54, first, that there shall be a reasonable estimation of their wage values" as distinguished from

App. Div.]

Third Department, July, 1920.

their salaries or compensation as such employers or as officers thereof in case the employers are corporations; second, such reasonable estimation shall be "separately stated " in the payrolls; and third, it shall be " added to the valuation" of the payrolls.

The president and treasurer of a corporation engaged in the business of making women's apparel who was injured in said occupation is not entitled to an award under the Workmen's Compensation Law, although his salary was included in the payroll, audited by the insurer and a premium was paid on such salary, if there was no estimation of the labor incidental to the claimant's occupation as distinguished from his salary as an officer of the corporation and it does not appear that such estimation was reasonable and separately stated in and added to the valuation of the payroll. Under such circumstances there has been no compliance with the requirements of subdivision 6 of section 54 of the statute governing the right of employers to an award for injuries received.

An employer does not become an employee merely because he performs work ordinarily performed by employees. It is not the work which such person was doing when he received the injury but the capacity in which, at the time, he was acting and his relation to the business that determines his right to an award..

JOHN M. KELLOGG, P. J., and KILEY, J., dissent, with opinions.

APPEAL by the defendants, Chic Cloak and Suit Company, Inc., and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 24th day of October, 1919.

Alfred W. Meldon, for the appellants.

Charles D. Newton, Attorney-General [E. C. Aiken, Deputy Attorney-General, of counsel], for the respondents.

COCHRANE, J.:

The employer is a corporation of which the claimant is its president and treasurer. The question here presented is whether he is also an employee within the meaning of the Workmen's Compensation Law so as to be entitled to an award for injuries received in the performance of his duty. Subdivision 6 of section 54 of the act (as added by Laws of 1916, chap. 622) gives to injured employers performing labor incidental to their to their occupations the same rights and remedies as are given employees, "provided, however, that the estimation of their wage values, APP. DIV.- VOL. CXCII. 49

Third Department, July, 1920.

[Vol. 192. respectively, shall be reasonable and separately stated in and added to the valuation of their pay rolls upon which their premium is computed." This statute contemplates insurance of employers not in their occupations as such employers but for "labor incidental" to such occupations. For employers to receive the benefit of the statute it is required, first, that there shall be a reasonable "estimation of their wage values" as distinguished from their salaries or compensation as such employers or as officers thereof in case the employers are corporations; second, such reasonable estimation shall be

separately stated" in the payrolls; and third, it shall be "added to the valuation" of the payrolls. The purpose of these requirements is that there shall be a joint contemplation by both the insurer and the insured that accidents to the employer are included in the risk. (Hubbs v. Addison Electric Light & Power Co., 191 App. Div. 765, in explaining Sharlow v. Sharlow Brothers Co., 181 id. 963.) By an examination of the payroll it is intended that the insurer shall be made aware of its liability and the extent thereof. The employer in such a case is insured not as the proprietor of the business but for the performance of labor incidental to such proprietorship and to that extent is placed on the same basis as his employees and is insured accordingly for such incidental labor. In the present case it appears that the salary of the claimant was included in the payroll which was audited by the insurer and that a premium was paid to the insurer on such salary. But it does not appear that there was any estimation of the " labor incidental" to the claimant's occupation as distinguished from his salary as an officer of the corporation nor does it appear that such estimation was

reasonable and separately stated in and added to the valuation of " the payroll. There has been no compliance with the statute in the particulars indicated and the claimant is not entitled to its benefits.

In Berman v. Reliance Metal Spinning & Stamping Co. (187 App. Div. 816) it was held by a closely divided court that the claimant although treasurer of the corporation was entitled to an award. But that case is clearly distinguishable from the present case. The theory of the award was that the claimant was " a high-priced laborer, the superintend

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Third Department, July, 1920.

ent of the plant." The corporation in the present case has a capital of only one thousand two hundred dollars, consisting of 120 shares of ten dollars each. The claimant owns 10 shares and the other stockholders are his father and two brothers. No dividends have ever been paid. The claimant and his father are the active members of the corporation, the two brothers taking no part in the management thereof. The claimant drew twenty-five dollars a week and his father fifteen dollars. Forty dollars a week was paid to the claimant's mother apparently for housekeeping expenses, the claimant and his father and one of the brothers constituting the household. The business was essentially a family arrangement. The work done was making women's apparel. There were from five to fifteen employees. Claimant and his father co-operated in the management and direction of the business. The claimant performed such work as might have been done by an employee and was so engaged when he received the injury in question caused by a splinter piercing his right thumb resulting in the partial loss of the use thereof. An employer, however, does not become an employee merely because he performs work ordinarily performed by employees. In the Berman case it was said: "It is not the fact that a man is a stockholder and officer of the corporation that determines; it is the character of his employment." It may also be pertinently said that independently of the statute it is not the work which he is doing when he received the injury but the capacity in which at the time he is acting and his relation to the business which determines. The question is whether he was in fact an employee or an employer doing work which might have been done by an employee. That question must be determined from all the circumstances. Here claimant had no superior. He was not only the actual head of the corporation but he and his father were in fact at the actual head of the business. In answer to a question as to whether he took orders from his father or gave orders to his father he answered "both work hand in hand." If the business had not been incorporated it would be essentially a partnership with the claimant as one of the partners. He testified that his father was "just an interested partner;" that the claimant himself was not an employee but that he was his "own

Third Department, July, 1920.

[Vol. 192. employer" and that the only way to get rid of him was to dissolve the partnership. This testimony is not merely the mistaken inference of the claimant but correctly expresses his actual relationship to the business. He was accountable to no one in the performance of his duties. The distinction between this case and the Berman case is apparent.

Attention is called to the cases of Matter of Bowne v. Bowne Co. (221 N. Y. 28); Howard v. George Howard, Inc. (9 State Dept. Rep. 355; 176 App. Div. 940; revd., 221 N. Y. 605), and Kennedy v. Kennedy Mfg. & Engineering Co. (177 App. Div. 56; revd., on reargument, 182 id. 907). In those cases awards were denied because the claimants were performing corporate duties rather than the duties of employees. The principles determined in those cases are controlling in this. The mere fact that the claimant was president and treasurer of his corporation is perhaps not very important in this case. The important feature is that in his relation to the business he was in no sense an employee but had all the attributes, powers and functions of an employer.

The Legislature having provided a method whereby employers who perform labor incidental to their occupations may be insured for such incidental labor no just criticism can be made by an employer who fails to avail himself of the method thus provided.

The award should be reversed and the claim dismissed.

All concur, except JOHN M. KELLOGG, P. J., and KILEY, J., each dissenting wfth an opinion.

JOHN M. KELLOGG, P. J. (dissenting):

This was a family corporation, with one thousand two hundred dollars in stock, consisting of 120 shares of ten dollars each, of which the claimant owned 10 shares, one-twelfth of the corporation. The other brothers owned nearly seventy per cent of the stock and the father the balance. The claimant was paid thirty-five dollars a week for his work, the father fifteen dollars. Forty dollars a week was paid to the mother as representing the capital which the other brothers had in the business. The corporation never paid any dividends and employed from five to fifteen people in the business. The claimant was